1.1 "Affiliate" means in relation to either party, any entity that controls, is controlled by or is under common control with a party; the terms “control” and “controlled” meaning ownership of at least 50% of the voting shares or the ability to direct the management of the relevant entity.
1.2 "Contract" means the contract for the supply of the Goods and Services specified in The Proposal (which supply is subject to these Terms of Business).
1.3 "Client" means the party to which the Proposal is addressed.
1.4 "Goods" means the articles or any part thereof supplied to the Client by or on behalf of RR Donnelley in the performance of the Services.
1.5 "Order" means the order (oral or in writing) placed by or on behalf of the Client for performance of the Services by RR Donnelley.
1.6 "Proposal" means RR Donnelley’s proposal(s) or Proposal(s) for the Goods and Services as accepted by the Client whether in writing or orally.
1.7 "RR Donnelley" means RR Donnelley Australia Pty Limited.
1.8 "Services" means publishing and other related services to be performed by RR Donnelley pursuant to the Contract including any other services required by the Client from time to time and agreed to be performed by or on behalf of RR Donnelley as set out in the Proposal.
BASIS OF CONTRACT The Contract shall be deemed to come into force on the earlier of: (a) when the Client receives RR Donnelley’s written acceptance and confirmation of the Client’s Order (subject to these Terms of Business); or (b) when RR Donnelley commences performance of the Services. The Contract will be on these Terms of Business to the exclusion of any terms or conditions stipulated incorporated or referred to by or on behalf of the Client whether in the Order, on any purchase order, correspondence or other documentation or in any negotiations. In the event of any conflict between The Proposal, the Order and these Terms of Business, the order of precedence shall be The Proposal, these Terms of Business and then the Order.
PRICE Any Proposal given by RR Donnelley for the Services will remain fixed for a period of 30 days subject to RR Donnelley’s right to vary any such Proposal in the event of an error or omission. Thereafter unless a Proposal is specifically referred to in writing as a firm Proposal the quoted price may be increased by RR Donnelley to take into account market conditions (and, as may be the case, currency fluctuations) at the date of actual performance of the Services under the Order and the Client shall pay such increased price to RR Donnelley. Without prejudice to their generality the words “market conditions” will include any increase in the cost of labour, materials, services or transport. Unless otherwise stated, all prices are exclusive of any applicable goods and services or other applicable sales taxes, which RR Donnelley will additionally charge in accordance with applicable laws.
SUB-CONTRACTORS RR Donnelley shall be entitled to sub-contract the fulfillment of the Contract or any part Suite 34, 26-32 Pirrama Road Pyrmont NSW 2009 Australia Tel: 02 9199 8711 / 1300 771 251 Fax: 02 9199 6581 ABN Number: 73 168 862 057 thereof.
5.1 RR Donnelley will arrange for the delivery of the Goods in the manner specified in its Proposal or as otherwise agreed with the Client.
5.2 Delivery to the Client shall occur (and the Services shall be deemed completed) upon (as applicable)
- delivery of the Goods into the mail system; or
- loading at RR Donnelley’s place of production upon vehicle arranged by the printer or by Client’s or other designated carrier where such method of delivery is chosen; or
- digital delivery to the Client.
5.3 RR Donnelley will use reasonable endeavours to meet any timescales for delivery agreed in the Contract. If delivery by such date is not achieved despite RR Donnelley having used such endeavours, RRD and its Affiliates will not be liable to the Client or its Affiliates for any loss or damage whatsoever resulting from such delayed delivery.
PROOFS Save as otherwise set out in the Proposal, RR Donnelley reserves the right to charge additional fees for any author’s corrections, including alterations in style and the cost of additional proofs necessitated by such corrections. Proofs of all work may be submitted for the Client’s approval and in that event, no liability will be accepted by RR Donnelley or its Affiliates for any errors not corrected by the Client and any Goods re-manufactured due to such errors will be at the cost of the Client.
TITLE AND RISK The Goods will be at the Client’s risk immediately on delivery as specified in clause 5.2. Title in the Goods shall pass to the Client on delivery.
8.1 All rights and physical property in any film, plates, drawings, designs, specifications and other materials manufactured and used by or on behalf of RR Donnelley in the production of (without limitation) typesetting, negatives, positives and plates will remain the property of RR Donnelley.
8.2 Except as provided in clause 8.3 below, typesetting may be distributed and lithographic, photogravure, or other work effaced immediately after the Order is executed unless written arrangements are made to the contrary. In the latter event, the Client will be liable for the cost of storage and related administration.
8.3 RR Donnelley shall not use any signatures enfaced on any document produced during the Services for any other purpose than the performance of the Contract.
9.1 In the event that RR Donnelley generates any new intellectual property rights in the Goods whilst acting exclusively on behalf of the Client, the Client will own such intellectual property rights and RR Donnelley will enter into any documents or do any acts reasonably required by the Client to confirm the Client’s title to such rights. For the avoidance of doubt if RR Donnelley generates any new intellectual property rights in its own software, processes and procedures whilst performing the Services or whilst creating the Goods under this Contract, RR Donnelley will own such intellectual property rights and the Client will enter into any documents or do any acts reasonably required by RR Donnelley to confirm RR Donnelley’s title to such rights.
9.2 The Client hereby grants to RR Donnelley a non-exclusive free of charge licence to use all copy, designs, materials, logos and like items supplied by the Client or on its behalf for the purposes only of performing the Services and creating the Goods. To the extent that any RR Donnelley’s intellectual property rights are incorporated into any Goods delivered to the Client and strictly to the extent necessary for the Client to receive the Services, RR Donnelley hereby grants to the Client a non-exclusive, nontransferable licence to use RR Donnelley’s intellectual property rights and the Client will not sub-license or assign such licence without the prior written consent of RR Donnelley.
9.3 The Client acknowledges that it is providing copy, data, scripts, photographs, layout, typesetting and typographical arrangement, fonts, formats, logos and other materials (“Client Materials”) in order that RR Donnelley may deliver Goods and Services. The Client warrants that it has all rights to provide the Client Materials to RR Donnelley and that the Client Materials do not infringe the copyright or other intellectual property rights of any third party, are not defamatory or obscene, are not illegal or unlawful, scandalous or libellous or contravene any regulatory requirements (together the “Breaches”).
9.4 The Client hereby fully indemnifies and holds harmless RR Donnelley and its Affiliates, officers, employees, agents and distributors against all claims, liabilities, fines, costs, expenses, damages or losses arising out of the Services or as a result of any work done by or on behalf of RR Donnelley for the Client at the Client’s request which contains Breaches.
WARRANTIES AND LIMITATIONS OF LIABILITY
10.1 RR Donnelley warrants that the Goods will be manufactured in accordance with the Client’s specifications and will be of satisfactory quality. To the extent permitted by law, all other warranties or conditions statutory or otherwise (including conditions as to quality or fitness for any particular purpose) whether express or implied are hereby excluded.
10.2 RR Donnelley’s liability to the Client and the Client’s only remedy for any loss or damage incurred by the Client arising from breach of the warranties in clause 10.1 will, at RR Donnelley’s option, be limited to the reprinting of the Goods by RR Donnelley or the refund of the price paid for such Goods.
10.3 Notwithstanding clauses 10.4 to 10.6, RR Donnelley and its Affiliates do not exclude liability (if any) (i) for death or personal injury resulting from negligence; (ii) for fraud; or (iii) for any matter for which it would be illegal to exclude, or attempt to exclude, liability.
10.4 RR Donnelley and its Affiliates shall not be liable to the Client (i) for any indirect or consequential losses; (ii) for lost profits, revenues, or lost opportunities, or (iii) for any loss of goodwill or reputation, in each case however caused and whether by the negligence, breach of contract or other default of RR Donnelley, its agents, subcontractors or Affiliates or otherwise.
10.5 Subject to the foregoing provisions of this clause 10, RR Donnelley’s and its Affiliates’ total aggregate liability in contract, tort (including negligence or breach of statutory duty) or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to an amount equal to the Contract price multiplied by two.
10.6 Should the Services include domestic or international facsimile or other data transmission services, RR Donnelley’s and its Affiliates’ liability to the Client for any loss or damage incurred by the Client due to or arising from any failure or delay in the performance of the facsimile transmission services will be limited to a cancellation of RR Donnelley’s charges for such transmission service. In no case will RR Donnelley or its Affiliates be liable to the Client or to third parties for any loss of sales, advertising revenue or profit or of any damage, injury or expense whatsoever arising directly or indirectly from any such failure or delay on the part of RR Donnelley or its subcontractors or Affiliates.
RISK OF DAMAGE TO CLEINT'S PROPERTY
11.1 Whilst all typescript, tapes, discs, film, artwork or any other material supplied by the Client will remain the Client’s property, any such items which are left in the custody or control of RR Donnelley by the Client will be so left at the sole risk of the Client and neither RR Donnelley nor its Affiliates will be responsible for any loss or damage occasioned to them whilst in such custody or control.
11.2 The Client will at its own expense insure any such items to the full value thereof whilst in the custody or control of RR Donnelley.
12.1 RR Donnelley will have the right to terminate the Contract on written notice to the Client if:
12.1.1 the Client defaults in or commits a breach of the Contract or of any other of its obligations to RR Donnelley; or
12.1.2 any distress or execution is levied upon the Client’s property or assets; or
12.1.3 the Client makes any arrangement or composition with creditors, or becomes insolvent; or
12.1.4 any petition or receiving order in insolvency is presented or made against the Client; or
12.1.5 the Client is a limited company and any resolution or petition to wind up such company’s business (other than for the purpose of amalgamation or reconstruction where the emergent company assumes its obligations) is passed or presented; or
12.1.6 a receiver or administrator of the Client’s undertaking, property or assets or any part thereof is appointed
or where any of the foregoing are, in RR Donnelley’s opinion, likely to occur.
Each party shall keep confidential all information which is identified as confidential, or which by its nature is confidential, and shall not copy, use or disclose any such information to any third party other than as is necessary to comply with its obligations under the Contract. This obligation does not apply to information which is or becomes available to the public (other than by reason of a breach of the recipient of this condition), which is lawfully in a party’s possession prior to disclosure, or which a party can demonstrate from its own records has been developed independent of the Contract.
In addition to any right of lien to which RR Donnelley may by law be entitled, RR Donnelley will be entitled to a general lien on all goods and paper or other material supplied by the Client which are in RR Donnelley’s possession (even if such goods and paper or other material or some of them have been paid for) as security for the unpaid price of any other Goods delivered to the Client by RR Donnelley under this or any other Contract. Without prejudice to its other rights and remedies, RR Donnelley will be entitled on the expiry of fourteen days’ written notice of non-payment to dispose of such goods and paper or other material on the best commercial terms reasonably obtainable and to apply any proceeds towards such unpaid price.
SUSPENSION OF DELIVERIES
If the Client defaults in paying any amount due under this Contract as and when that amount becomes due RR Donnelley will have the right (without prejudice to its other rights and without incurring any liability to the Client) either to suspend all further Services until the default is made good or to cancel the rest of the Order to which that amount relates.
In the case of partial completion of an Order, where RR Donnelley has issued an invoice RR
Donnelley will be entitled to be paid for all Goods delivered and Services performed by it
under that Order and will be entitled to payment in part in respect of work done by it under
that Order (without prejudice to its rights should the Client be in default).
PAYMENT OF INVOICES
17.1 The price payable for the Services will be paid by the Client to RR Donnelley at the address stated and within the time period stipulated in the invoice (and where no such period is stipulated such invoices will be paid within 30 days of receipt by the Client thereof); provided that invoices in respect of postal charges incurred by RR Donnelley on behalf of the Client will be paid within seven days of the date thereof. Payment within this period shall not be deemed to have been received until RR Donnelley has received such payment in cleared funds.
17.2 Satisfactory business references must be given to RR Donnelley if required.
17.3 Without prejudice to RR Donnelley’s other rights (including the right in any event to sue for the price immediately payment becomes due whether or not property in the Goods has passed) RR Donnelley reserves the right to charge interest on the amount of any delayed payment at the rate of 2 per cent per month or part of a month until payment in full has been received.
17.4 All payments to be made by the Client under the Contract will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature. In the event that Client is required by applicable law to deduct or withhold amounts from any payments to RR Donnelley, the fees shall be increased by an amount (and the Client shall increase the amounts paid to RR Donnelley) such that net amount received by RR Donnelley is the same as it would have been had there been no deduction or withholding made.
17.5 All sums payable to RR Donnelley under the Contract will become due immediately upon termination of the Contract.
FINANCIAL RISK If RR Donnelley considers at any time in its absolute discretion that the financial circumstances of the Client do not justify the credit terms specified in this Contract, RR Donnelley will, at its option (exercisable by notice in writing to the Client) be entitled, without incurring any liability to the Client, be entitled to either require payment in cash before commencement of production of the Goods or before delivery of the Goods.
No relaxation, forbearance or delay by RR Donnelley in enforcing any of its rights under this Contract will prejudice, affect or restrict the rights of RR Donnelley hereunder, nor will any waiver by RR Donnelley of any breach operate as a waiver of any subsequent or continuing breach of this Contract.
Headings to the clauses in this Contract are for convenience of reference only and will not affect the interpretation thereof.
SEVERABILITY If any provision in this Contract is found to be invalid, ineffective or unenforceable, the invalidity, ineffectiveness or unenforceability of such provision will not affect any other provision in this Contract, which will remain in full force and effect.
The Contract is personal to the Client who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without RR Donnelley’s prior written consent.
Unless this Contract expressly provides otherwise, a consent under this Contract may be given or withheld in the absolute discretion of the party entitled to give the consent and to be effective must be given in writing.
The Contract contains all the terms which RR Donnelley and the Client have agreed in relation to the Goods and Services and supersedes any prior written or oral agreements, representations or understandings between the parties relating to such Goods and Services. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of RR Donnelley which is not set out in the Contract. Nothing in this clause will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
RR Donnelley will be deemed not to be in breach of the Contract or otherwise liable to the Client in any manner whatsoever for any failure or delay in performing its obligations under the Contract due to circumstances beyond the reasonable control of RR Donnelley.
GOVERNING LAW AND JURISDICTION
This Contract will be governed by and construed exclusively in accordance with the law applying in New South Wales and the each party agrees irrevocably to submit to the nonexclusive jurisdiction of the courts having jurisdiction in that state and the courts competent to determine appeals from those courts, with respect to any proceedings that may be brought at any time relating to this Contract and waives any objection it may have now or in the future to the venue of any proceedings, and any claim it may have now or in the future that any proceedings have been brought in an inconvenient forum, if that venue falls within this clause 26.